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2018 (12) TMI 1506 - AT - Income TaxUndisclosed long term capital gains - quantification of capital gains arising on transfer of immovable property being land - ascertainment of jantri value/circle rate - Whether the rights acquired under the agreement to sale is a capital asset or not? - whether such right stands transferred/extinguished within the meaning of Section 2(47) while executing the agreement to sale dated 25.03.2009 as a confirming party having regard to provisions of Section 2(14) and Section 2(47)? Held that:- The consideration agreed by the ultimate purchaser over and above the consideration freezed by the assessee with Melody Complex was directly given by ultimate buyer (Gatil Properties) to the intermediary/confirming party (Melody Complex). There is no material available on record to hold that the assessee herein is the beneficiary of the excess consideration. Noticeably, the provisions of Section 50C of the Act have not been invoked at all. Therefore, where the deeming provisions of Section 50C has not been invoked and there is nothing to demonstrate that the assessee has received more than what is offered for the purposes of determination of capital gains, it is difficult to draw inference against the assessee on the basis of suspicion howsoever strong. We may however hasten to add that the CIT(A) ought to have weighed the jantri value vis-à-vis the sale price agreed by the assessee with Melody Complex while granting relief to assessee. Thus, the order of the CIT(A) suffers from inadequacy or infirmity to this extent. No plausible reason to depart from the view taken by the first appeallate authority, until it is found that jantri value of parcels of land in question is higher than the sale price agreed by the assessee with Melody Complex. Thus remit the matter back to the file of AO to ascertain the jantri value/circle rate existing at the time of agreement with Melody Complex on 15.09.2008 and substitute the same with sale consideration agreed by the assessee with Melody Complex in case it is found higher than the actual sale consideration of ₹ 19.10 Lakhs. - issue is required to be restored back to the file of AO for its consideration. - Appeal of the Revenue is allowed for statistical purposes.
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